Dreyer v Ausmar Homes t/as Ausmar Commercial [2023] QCATA 161

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dreyer v Ausmar Homes t/as Ausmar Commercial [2023] QCATA 161 PARTIES: DEAN JASON DREYER (applicant/appellant) v AUSMAR HOMES T/AS AUSMAR COMMERCIAL (respondent) APPLICATION NO/S: APL275-22 ORIGINATING APPLICATION NO/S: BDL296-20 MATTER TYPE: Appeals DELIVERED ON: 6 December 2023 HEARING DATE: 21 November 2023 HEARD AT: Brisbane DECISION OF: A/Senior Member Fitzpatrick ORDERS: 1. Leave to appeal is refused. 2. The appeal is dismissed. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where written subcontract terminated – whether claim for unsubstantiated variation and suspension of work amounted to repudiation - applicant asserts an error of law and misrepresentation of facts in the proceeding below – nature of error of law and of mixed law and fact – whether leave to appeal should be granted. Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 142(3)(b), 147 Comcare v Etheridge (2006) 149 FCR 522 Haritos and Anor v Commissioner of Taxation (2015) 322 ALR 254 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Mazelow Pty Ltd v Herberton Shire Council [2003] 1 Qd R 174 Pivovarova v Michelsen [2019] QCA 256 Rintoul v State of Queensland & Ors [2018] QCA 20 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 -- 1 of 14 -- 2 Shevill v Builders Licensing Board [1982] HCA 47 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] Mr Dreyer has filed an application for leave to appeal or appeal a decision made on 15 August 2022. [2] The decision was to dismiss Mr Dreyer’s application seeking damages for wrongful termination of a contract for the preparation, placement, and finish of all concrete works at the Sippy Creek Animal Pound. The contract was a written contract entered into between the respondent Ausmar Homes Pty Ltd trading as Ausmar Commercial and a subcontractor named as AA Concreting. Mr Dreyer signed the contract on behalf of AA Concreting. Mr Dreyer trades as AA Concrete Constructions. The subcontractor is referred to in this decision as Mr Dreyer or AA Concrete. [3] The decision followed an oral hearing in the matter. At the hearing the parties relied on substantial written material filed in support of the application and the response. [4] In the written reasons for the decision the Member set out evidence in relation to claimed variations to the contract, leading to an email from Mr Dreyer to Ausmar dated 18 July 2016 suspending work, and demanding payment for an unpaid variation claim. [5] The Member found that Mr Dreyer had not established to his satisfaction any legitimate basis for suspending the contract. The Member accepted that Ausmar was entitled to terminate the contract, with the result that Mr Dreyer’s application was dismissed. Application for leave to appeal or appeal [6] Ausmar has not participated in the appeal proceeding and is non-compliant with all Directions. I am satisfied that Ausmar has been provided with the Appeal Tribunal’s Directions. I intend to determine the application for leave to appeal or appeal without further reference to Ausmar. [7] Mr Dreyer has asserted in his application that there has been an error of law and a blatant misinterpretation of facts referenced in the decision. He says that he requires leave to appeal. Beyond that, Mr Dreyer has not characterised his grounds of appeal by reference to an alleged error of law, fact, or mixed law and fact. [8] Leave to appeal is required if the grounds raised by Mr Dreyer raise questions of fact, or mixed law and fact, as opposed to questions of law only which do not require leave.1 [9] A question of law may relate to many matters including the legal consequences of proven facts, interpretation of a statute or a statement of legal principle. A question of law may also relate to an error in the process of reasoning when making a finding of fact, including identification of a wrong issue, asking a wrong question, failure to take 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b). -- 2 of 14 -- 3 into account a material matter, and taking into account of an irrelevant matter.2 In other words, if the decision-maker adopts a wrong approach to the task, the decision may be set aside and the matter remitted for reconsideration.3 [10] Questions of fact are questions about what actually took place between the parties. [11] Questions of mixed law and fact arise where to decide a question of law, a question of fact must be determined.4 Put another way, questions of mixed law and fact are whether the facts satisfy the legal tests. A mixed question of law and fact is not a question of law when what is required of the Appeal Tribunal is the determination of a question of law only, in accordance with s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).5 [12] If leave to appeal is required, Mr Dreyer must show that: (a) the appeal is necessary to correct a substantial injustice; (b) there is a reasonable argument that there is an error to be corrected.6 [13] The Appeal Tribunal will undertake an assessment as to whether the applicant shows a reasonably arguable case. [14] If leave to appeal is granted the appeal must be decided by way of rehearing by reference to the evidence at the hearing before the Member.7 The Appeal Tribunal will make its own findings of fact and formulate its own reasoning based on those findings.8 [15] By way of relief Mr Dreyer seeks an award of compensation as originally sought in the proceedings below. To achieve that order Mr Dreyer will need to raise errors of fact or mixed law and fact. The Appeal Tribunal will have to conduct a rehearing on the evidence and make its own findings of fact in his favour. Mr Dreyer’s submissions as to error filed 22 December 2022 [16] I have set out Mr Dreyer’s submissions as to error, largely in the order they are made by him. Mr Dreyer has referenced each paragraph of the decision to make his submissions. There is some repetition in the assertions which I have not set out repeatedly. [17] Because of the way Mr Dreyer has framed his grounds of appeal it has been necessary for me to characterise the allegations in order to determine whether leave to appeal is required and how the application for leave to appeal or appeal must be decided. [18] Mr Dreyer contends the Member: (a) did not acknowledge the claim as a claim for damages for breach of contract (the allegation raises a question of law, that is misconceiving the nature of the claim); 2 Pivovarova v Michelsen [2019] QCA 256, [18]. 3 Haritos and Anor v Commissioner of Taxation (2015) 322 ALR 254, [124]-[126], [194]. 4 Ibid [192]. 5 Comcare v Etheridge (2006) 149 FCR 522, [16]; Pivovarova v Michelsen [2019] QCA 256, [36]. 6 Rintoul v State of Queensland & Ors [2018] QCA 20, [10]. 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147. 8 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43]. -- 3 of 14 -- 4 (b) based the decision on facts in relation to disputes about payments made and variations which do not form part of the claim (the allegation raises a question of law, that is taking into account irrelevant considerations); (c) should not have commented on or calculated costs and variations because he had little knowledge of the construction project (the allegation raises a question of law, that is taking into account irrelevant considerations); (d) confused a claim for variations and/or quantum meruit by calculating them together (the allegation raises a question of law, that is misconstruing the nature of the claim); (e) accepted the evidence of Ausmar as to commencement of work on site as being after 10 May 2016 when the start date was on Mr Dreyer’s evidence 9 May 2016 (the allegation raises a question of fact); (f) should not have considered the history of claimed variations and payments made as that does not form part of the claim (the allegation raises a question of law, that is taking into account irrelevant considerations); (g) was confused as to an email of 18 July 2016, which was said to have been sent on 15 July 2016 (the allegation raises a question of fact); (h) did not consider that the postponement of works was within contractual timeframes, the contract and two pieces of legislation (the allegation raises a question of law, that is failure to take into account a relevant consideration); (i) made comments in relation to Mr Dreyer’s medical condition, which were not relevant (the allegation raises a question of law, that is taking into account irrelevant considerations); (j) did not address Mr Dreyer’s timeline of events (the allegation raises a question of law, that is failure to take into account relevant considerations); (k) referred to matters which occurred after the unlawful termination of the contract (the allegation raises a question of law, that is taking into account irrelevant considerations); (l) referred to alleged reasons for unpaid variations which was irrelevant because variations do not form part of the claim. The problems on the project were raised to show the project was affected by numerous complications which is supported by expert evidence (the allegation raises a question of law, that is taking into account irrelevant considerations); (m) incorrectly concluded that allegations as to the reasons for unpaid variations were not supported by evidence, when his submissions were supported by detail and documentation (the allegation raises a question of law, that is failing to have regard to relevant evidence); (n) did not consider that Ausmar had not provided any evidence that proves a lawful reason to terminate the contract (the allegation raises a question of mixed fact and law); [19] Further it is alleged that as per the email dated 15 July 2022, the project was “postponed” and not “suspended”. Despite complications with the project AA Concrete was ahead of the contract schedule and Mr Dreyer had every right to -- 4 of 14 -- 5 postpone or even suspend the works (the allegation raises questions of mixed law and fact); [20] Finally, it is alleged that the contract was unlawfully terminated with claims of not meeting the head contractor’s strict timeframes and then of project abandonment. Noting that the head contractor’s contract with Ausmar and delivery timeframes did not form part of the contract and at no time was the project abandoned (the allegation raises questions of mixed law and fact). How the application for leave to appeal or appeal will be determined. [21] The alleged errors of law will be dealt with first. I will then consider the allegations which raise errors of fact and mixed law and fact to determine if leave to appeal should be granted. [22] I have had regard to the transcript of the hearing, Mr Dreyer’s submissions on the appeal, and the material filed in the Tribunal in the building dispute. [23] Mr Dreyer has confirmed that the decision correctly records his case as a claim for damages comprised of: (a) Loss of contract payments - $15,068.04 (b) Loss of future work - $31,600.65 (c) Stress and anxiety - $3,331.31 [24] Mr Dreyer also confirms that the decision correctly identified the contract and its key terms. Errors of Law Was the claim for damages for breach of contract misconstrued? [25] I do not consider that any error of law has occurred. The Member treated the claim as a claim for damages for breach of contract. The Member correctly set out the claim before him and on Mr Dreyer’s submissions correctly set out the damages claimed. I find that although the Member recorded the change in the value of Mr Dreyer’s claim, which was made to ensure the claim fell within the Tribunal’s jurisdiction, there was no conflation of a claim based on a quantum meruit and a claim for the value of unpaid variations. The Member did not find it necessary to address the quantum of the claim or its mode of calculation because of his finding that Ausmar was entitled to terminate the contract. Did the Member take into account irrelevant considerations by considering claimed variations on the project? [26] In this part of the decision, I address the alleged errors of law set out earlier at paragraph [18] (b), (c), (d), (f), and (l). [27] Because of Mr Dreyer’s repeated insistence in his submissions that his claim was not a claim for the value of unpaid variations, but rather damages for breach of contract, it is possible that Mr Dreyer has misunderstood the reasoning undertaken by the Member. The Member was not considering the history of claimed variations to decide if Mr Dreyer should be awarded the value of unpaid variations as an outcome of the proceeding. The Member was considering the history of claimed variations as part of his enquiry as to whether Mr Dreyer had a good reason to cease work on the project. -- 5 of 14 -- 6 Mr Dreyer’s suspension of work was expressly linked to Ausmar’s failure to pay the June 2016 variation claim reference VAAK002 for $283,140.40. The conclusion in relation to whether Mr Dreyer had a good reason to cease work because of failure to pay that claim then formed the basis of a conclusion as to whether Ausmar had acted lawfully in terminating the contract. [28] Accordingly, the Member did not take into account irrelevant matters when he considered the history of claimed variations on the project. No error of law is made out. Did the Member fail to take into account relevant considerations relating to postponement of the works being within contractual timeframes, the terms of the contract, and two pieces of legislation? [29] The Member did not address the progress of works, the terms of the contract or the legislation referred to by Mr Dreyer in his statement filed 8 July 2021. [30] Mr Dreyer asserts that AA Concrete had the right to suspend works under the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”), although he does not state under what provision nor how the facts of the matter fall within the Act. His submissions attached some commentary on a later Act which came into force after the repeal of the BCIPA. Mr Dreyer also refers to the Queensland Building and Construction Commission Act 1991 (Qld), but again does not refer to a relevant section or say how it applies on the facts of the matter. I do not consider there has been an error in not taking these pieces of legislation into account in determining the matter given the way in which the case was prosecuted by Mr Dreyer. [31] As to whether there was an error in failing to take into account contractual timeframes and the terms of the contract, no different outcome would have resulted because of the approach taken as to the relevant issues in the proceeding. [32] The Member approached the key issue in the case as whether Ausmar was entitled to terminate the contract because of suspension of work on the basis of non-payment of the June variation claim. That is, whether Mr Dreyer repudiated the contract entitling Ausmar to terminate the contract. I consider the key issue was correctly determined by the Member. [33] The terms of the contract in relation to termination are relevant and it would have been helpful for the terms to be canvassed. However, the common law in relation to termination of contract is expressly preserved by clause 22.6 of the contract. Where the decision is consistent with the common law, I do not consider an error of law is made out by not considering the terms of the contract. [34] Further, given the key issue for determination, I do not consider the contractual timeframes for performance are relevant and, on that basis, find that no error of law is made out. Did the Member fail to take into account a relevant consideration being Mr Dreyer’s timeline of events? [35] Mr Dreyer refers to his 8 July 2021 statement and the events which resulted in AA Concrete not proceeding with work because the worksite was unsafe in the period immediately prior to termination of the contract. It is the case that the Member did not address this issue. Again, the issue was not relevant to the key issue in the case going to suspension for non-payment of the June variation claim. On this approach the other -- 6 of 14 -- 7 matters raised by Mr Dreyer were not relevant. I find that there was no error of law in not considering the timeline of events relating to worksite safety raised by Mr Dreyer. Did the Member take into account irrelevant considerations? [36] The Member referred to Mr Dreyer’s medical condition and to dealings between the parties after termination of the contract. These matters did not form part of the reasoning for the decision and were merely observations. I find that there was no error of law by taking into account irrelevant considerations. Did the Member fail to have regard to relevant evidence as to the reasons for unpaid variations? [37] The Member sets out at paragraph [19] of the decision a list of problems which arose on the project which Mr Dreyer says were causative of variations to the scope of works and resulted in the unpaid June variation claim. The Member said that Mr Dreyer provided detail in relation to some of these allegations but no evidence. Mr Dreyer says that the Member failed to have regard to the supporting documentation in relation to these issues. [38] I note that no expert was called by Mr Dreyer to give evidence at the hearing. Further, there is no clear statement given by him of what extra work has been performed by AA Concrete, linked to the alleged problems on site. Some explanation of the claim for the June variation linked to problems on site appears in Document 2 attached to the original application filed on 7 December 2020. The document is a densely written statement of the basis for the June 2016 variation claim, presumably written by Mr Dreyer. The document is very difficult to understand. There are no supporting contemporaneous documents which might provide an explanation for the allegations made in the document and which could be relied upon as evidence. [39] I find that the Member did not fail to have regard to relevant evidence. I find that the Member was entitled to conclude that there was no evidence before him in relation to the allegations and that there has been no error of law. Errors of fact [40] Mr Dreyer asserts the start date on the project was 9 May 2016, not “after 10 May 2016”. The Member made no finding on the issue, merely noting Ausmar’s evidence as to when work commenced. I do not consider that any relevant issue turns on the start date. No error of fact which is important for the grant of leave to appeal is shown. [41] Mr Dreyer asserts that the critical email referred to in the decision as having been sent by Mr Dreyer on 18 July 2016 was in fact sent on 15 July 2016. The importance to Mr Dreyer’s case of the email having been sent on 15 July 2016 is not made clear. 18 July 2016 is the date on the header of the email in the material filed by Ausmar. The same email appears in the material filed by Mr Dreyer however the document does not bear a header with the transmission details. It is not apparent that there has been an error on the part of the Member as to the date the email was sent by Mr Dreyer. No error of fact is established which would affect a grant of leave to appeal.. -- 7 of 14 -- 8 Errors of mixed law and fact Was there evidence to prove a lawful termination of contract? Were the alleged grounds for termination available to Ausmar? Was Mr Dreyer entitled to suspend the works? [42] Having regard to the claim as filed and the response filed by Ausmar, the issues in dispute were: (a) whether Mr Dreyer’s conduct amounted to a repudiation of the contract entitling Ausmar to terminate the contract, with the result that Mr Dreyer was not entitled to an award of damages, or (b) whether Ausmar’s conduct amounted to a wrongful termination of the contract, with the result that Mr Dreyer was entitled to an award of damages. Member’s reasoning [43] The Member found that there was no legitimate basis for Mr Dreyer to suspend performance of works under the contract. [44] The Member referred to the reasons for Mr Dreyer ceasing work under the contract as given in an email from Mr Dreyer to Ausmar. I am satisfied that the email was correctly noted as having been sent on 18 July 2016. The email notified Ausmar that all further works on the project were “postponed” unless notified otherwise. The email alleged substantial breach of contract as a result of failure to pay the last payment claim by reference to “VAAK002”, being a claim (including a large sum for a variation) in an amount of $283,140.40. [45] Before coming to a conclusion that Ausmar was entitled to terminate the contract the Member considered whether there was any justification for Mr Dreyer to suspend work. Mr Dreyer’s reason for ceasing work was a failure by Ausmar to pay a claim in an amount of $283,140.40. On that basis an enquiry was made by the Member as to the history of claimed variations. [46] The history of claimed variations is set out in the decision. For clarity sums referred to are inclusive of GST. Relevantly: (a) the sub-contract price was $101,163.00; (b) 25 May 2016 – the first payment claim was made for $49,548.80 including a variation claim of $1,650.00. The invoice was paid on 26 May 2016; (c) 22 June 2016 – claim for $283,140.40 including a variation claim of $233,591.60. The claim was disputed; (d) 11 July 2016 agreement was reached on a variation claim arising from the wrong concrete mix being supplied. The agreed sum of $9,214 was paid on 11 July 2016; and (e) 15 July 2016 – claim for a variation of $22,834.56 exclusive of GST. Claim reduced by Ausmar to $14,160.00 and paid on 11 August 2022. [47] The Member refers to a Variations claim spreadsheet sent by AA Concrete to Ausmar on 18 July 2016. That spreadsheet sets out claimed items of work said to be variations for the period 9 May 2016 to 30 June 2016 totalling $22,834.56. The spreadsheet then set out claimed items of work said to be variations for the period 1-17 July 2016 in an -- 8 of 14 -- 9 amount of $1,845.93. Finally, the spreadsheet referred to invoice 3 for the period 1-7 July 2016 in an amount of $10,849.73. [48] The Member observed that the spread sheet made no reference to the earlier claim for $283,140.40. [49] The Member then went on to consider the evidence said to justify the claim including for an unpaid variation said to be for $233,591.60. The allegation by Mr Dreyer is that unpaid variations arose from: (a) poor overall project design; (b) frequent design changes; (c) poor project management; (d) unforeseen adverse ground conditions; (e) environmental hazards; (f) accelerated contract requirements by the main contractor. [50] The Member said that Mr Dreyer provided detail in relation to some of these allegations, but no evidence of the matters alleged. It was noted that none of the variations that were paid were disputed and payment was accepted without demur. [51] The Member then concluded that Mr Dreyer or AA Concrete had not established to his satisfaction any legitimate basis for suspending the contract. He accepted Ausmar’s allegation that they had to terminate the contract with AA Concrete. In the circumstances he found no basis for the claims made by AA Concrete on 18 July 2016. The Member dismissed the application for damages for breach of contract. The evidence [52] Ausmar’s representative at the hearing was its Director, Mr Bryan. Mr Bryan put to Mr Dreyer that the reason why the contract was terminated was because of the variation claim of $233,500.00. Mr Dreyer refused to address the issue and said that variations are not the subject of the proceeding. Ausmar’s evidence [53] Mr Bryan’s statement of evidence filed 29 July 2021 sets out a timeline of events and attaches relevant contemporaneous records. I note from Mr Bryan’s evidence that claimed variations were discussed, revised, and agreed for payment prior to Mr Dreyer’s 18 July 2016 email suspending work for non-payment of the large June variation claim. [54] The following matters are addressed in Mr Bryan’s evidence. [55] By email sent at 7.19pm on 18 July 2016 Richard Paris, Project Manager, referred to Mr Dreyer’s 18 July 2016 email and the “postponement” of all works on site. He asked if there were any issues Ausmar should be aware of in relation to the postponement and confirmed the position in relation to payment of invoices and that the June variation claims were rejected, that the claims are in dispute and no payment certificate has been issued. Mr Paris said that he would contact AA Concrete “ASAP” to discuss the project going forward. -- 9 of 14 -- 10 [56] On 19 July 2016 at 10.05am Mr Paris sent a further email to Mr Dreyer. Mr Paris set out the history of approval of variations and said that the June Variation Claim was finalised at $14,160.00 by agreement with AA Concrete’s representative. Outstanding work under the contract was noted. [57] Mr Paris then said that no work had been completed on site since 7 July 2016 by AA Concrete despite being booked to start at various times during this period. He referred to the difficulty that caused for Ausmar and its client who have strict time schedules and progress requirements. Finally, he said: “taking into account all of the above, Ausmar has no choice but to end the relationship with AA Concrete effective immediately”. [58] An email was sent by Mr Dreyer to Mr Paris at 7.30am on 21 July 2016, which is difficult to comprehend in parts, but it suggests one of his team will respond to the termination letter. [59] On 21 July 2016 a final payment certificate was issued by Ausmar bearing the note: “Final payment as contract has been terminated due to abandonment.” An invoice was then issued by AA Concrete for a final sum and was paid. [60] Mr Bryan’s statement refers to subsequent communications between the parties including a claim made by Mr Dreyer on 12 September 2016 by way of an invoice dated 17 July 2016 for an amount of $30,000.00 said to be part payment for variations claim 2 for $203,000.00. A Notice of Intention to apply for adjudication under the Building and Construction Industry Payments Act 2004 (Qld) was given to Ausmar. Mr Bryan says that no adjudication claim was lodged. Thereafter Mr Dreyer continued to make demand for various sums related to the June variation claim. [61] It appears from Mr Paris’ email of 19 July 2016 that the grounds for termination of the contract with Mr Dreyer were: (a) the demand for payment for variation of the contract, which in Ausmar’s view had been settled between the parties; and (b) the fact that AA Concreting had performed no work on site from 7 July 2016 and intended to “postpone” further work; (c) three changes of representative for AA Concrete, causing confusion and instability for Ausmar and the client who have strict time schedules and progress requirements. [62] A subsequent email sent on 21 July 2016 by Ausmar referred to the contract as “deemed abandoned”. Mr Dreyer’s evidence [63] Mr Dreyer filed a statement of evidence on 8 July 2021, a response to Ausmar’s statement, filed 6 September 2021; a summary and closing statement, filed 30 September 2021; a response to Ausmar’s closing statement, filed 22 October 2021 and a statement by Mr Dreyer in response to Tribunal directions filed 20 May 2022. [64] Mr Dreyer’s evidence in his statement of 8 July 2021 is that the project was hampered by poor planning and design, latent conditions and adverse ground conditions which lead to health and safety concerns, variations, disruption, delays, and project acceleration. Email exchanges between Mr Dreyer and Ausmar reflect those issues in general terms. The email exchanges refer to variations on the project. -- 10 of 14 -- 11 [65] Mr Dreyer refers to an undated document (being page 6 with respect to document 3 attached to his statement) purporting to set out an arrangement in relation to claims. The document extracts an undated email from Ben Carter, Estimators Assistant, which provides for claims to be provided on a provisional basis on the 17th of each month and then an official claim on the 22nd of each month. Mr Carter says: “Upon receipt of your claim I will review for approval. Should all be fine unless something is drastically out of the ordinary, then will give you a buzz to chat through.” It is not clear if Mr Dreyer submits that is a process for approval of variations. If so, the arrangement referred to in the email provides for review of any claim before approval. [66] Mr Dreyer says that AA Concrete was ahead of schedule despite project delays. His statement attaches email exchanges which reflect delays for a variety of reasons. [67] Mr Dreyer asserts that under the contract AA Concrete was entitled to cease work in July 2016 because it was not safe to work amongst temporary structural propping of tilt panels in building F before the roof was completely installed, and amongst other trades doing block work, plumbing and electrical. Mr Dreyer says that AA Concrete was entitled to suspend works because of monies owed and unsafe work conditions. [68] Mr Dreyer complains that the termination letter of 19 July 2016 gave no sufficient reason for termination of the contract, no opportunity to respond and no adequate notice. The contract was summarily terminated. [69] In Mr Dreyer’s summary and closing statement filed 30 September 2021 he articulates the claim for damages and refutes that AA Concrete had repudiated the contract. He does so by reference to an argument that the contract had not been abandoned. [70] Mr Dreyer addresses the June 2016 variation claim in the response to Ausmar’s closing statement filed 22 October 2021. He asserts the variations claimed were calculated from 25 May 2016 through to 15 July 2016 a duration of 51 days. Mr Dreyer says the variations were calculated in accordance with the schedule of rates which formed part of the contract as well as in accordance with an industry handbook known as Rawlinson’s. [71] Mr Dreyer refers to a document attached to Mr Bryan’s statement prepared by Mosaic Project Services. That document is undated. It seems to be attached to a tax invoice dated 24 October 2016 (after termination of the contract) which claims the balance owing of documented variations to 17 July 2016, said to be a claim for costs of variations due to delays, disruption and acceleration. Following the tax invoice is a document titled “Design faults”. The document claims an: “estimated 25% of our working time to be re-directed i.e – many extra emails, phone calls, discussions, meetings, new planning, organising timing/equip/labour, etc – many wasted hours of labour doing either nothing or nothing effective”. A range of dates is given with explanations of the delay caused by given events. A notation is made that “these costs cannot be itemised as they are intermixed and dispersed throughout everything continually. As such, they have been estimated to have required 25% of the normal working time.” A calculation is then given of 25% of the value of completed works. [72] Mr Dreyer gives no explanation for the documents but seems to rely upon them as validation for the June 2016 variation claim. [73] Finally, in the document filed 20 May 2022 Mr Dreyer provided answers to matters put to him in Directions dated 11 March 2022. Relevantly Mr Dreyer was asked to state if the agreement between the parties was varied and the terms of the variation. -- 11 of 14 -- 12 Mr Dreyer said that agreed variations were entered into to the value of $14,160.00 which was paid and evidenced by the 21 July 2016 payment certificate. Mr Dreyer did not provide particulars of the claimed June 2016 variation. [74] Mr Dreyer then proceeded to set out an entitlement to claim damages for negligence. That is not how the claim was originally cast nor how Mr Dreyer currently casts his claim. Relevant contract terms [75] The QBCC Major subcontract 2013 entered into between the parties is attached to Mr Dreyer’s material. The subcontract defines a variation as: A change in the scope of the Works arising from: (i) an increase, decrease, addition, omission of work from the Works; (ii) a change in the method or process for, or the sequence of, the carrying out of the Works required by the Contractor; (iii) an alteration to the specification of a material; or (iv) changes in levels, dimensions, or the set out of the Works. [76] By clause 11 of the contract the contractor may give to the subcontractor a written direction to carry out a variation. If no price has been agreed the contractor must pay the subcontractor the reasonable value of the variation, including a reasonable allowance for profit, overheads, and administrative costs. The entitlement to claim payment for and be paid for a variation is not affected by the contractor’s failure to issue a written direction to carry out the variation. [77] By clause 12 of the contract, if the contractor fails to pay the whole or any part of an amount due to be paid to the subcontractor in accordance with clause 9.4, the subcontractor may serve a written notice on the contractor of the subcontractor’s intention to suspend carrying out the works. [78] Clause 9.4 of the contract refers to an amount of a progress claim which the contractor agrees to pay as set out in a progress certificate. [79] The progress claim in question is set out in the spreadsheet from AA Concrete for the period 9 May 2016 to 17 July 2016 sent to Ausmar on 18 July 2016. A payment certificate issued on 21 July 2016 by reference to that claim. [80] In the circumstances of this case clause 12 does not respond in terms of an entitlement to suspend work for failure to pay a variations’ claim which has not been agreed for payment and set out in a progress certificate. Consideration [81] Having considered the evidence it is relevant to consider whether the matters set out in Mr Paris’ email of 19 July 2016 are made out on the evidence, that is: (a) the demand for payment for variation of the contract, which in Ausmar’s view had been settled between the parties; (b) the fact that AA Concrete had performed no work on site from 7 July 2016 and intended to “postpone” further work; and -- 12 of 14 -- 13 (c) three changes of representative for AA Concrete, causing confusion and instability for Ausmar and its client given their strict time schedules and progress requirements. [82] As Mr Dreyer has asserted that he did not abandon the contract that issue should also be addressed. [83] My consideration is intended to answer the question: do any of those matters justify immediate termination of the contract? [84] On Ausmar’s evidence the demand for payment of the June 2016 variation was settled. The variations claim made in the 18 July 2016 spreadsheet is compelling evidence that no claim for the sum set out in the June 2016 invoice was maintained. Payment was accepted for the amount agreed between the parties. [85] Furthermore, for such a complex claim Mr Dreyer has not provided the specific evidence needed to justify the large variation claim, other than a broad-brush application of a 25% impost for delays in the conduct of the work. There are no detailed site records and no evidence of the matters which fall within the contract definition of a variation, accompanied by evidence of costs associated with those matters. If those records were not provided in evidence, it is very difficult for Mr Dreyer to establish that he was justified in suspending work for failure to pay a variation claim. Once Ausmar’s response made clear the basis of its denial of his claim, the evidentiary burden passed to Mr Dreyer. [86] The facts support an inference that the claim for the June variation in an amount of $233,591.60 was without substance or merit. [87] On the evidence there appears to be no justification for postponing work until payment of the June 2016 invoice. Even if one accepts that there were safety reasons for AA Concrete not attending the site from July 2016, the relevant issue is the refusal to attend work from 18 July 2016 for an indefinite period. Further the critical 18 July 2016 email makes no reference to site safety as a reason to refuse to conduct work. [88] As to the terminology used, I do not consider there is any difference in “postponing” work for an indefinite time and suspending work for an indefinite time. [89] The evidence supports this part of Ausmar’s reasons for termination. [90] The changes of representative causing confusion and instability is not supported by evidence which might establish repudiatory conduct. Mr Dreyer asserts that the client’s timeframes did not form part of AA Concrete’s contract. I do not think Ausmar is asserting as a ground for termination that timeframes have not been met, rather it is noting the propensity for personnel changes to impact progress requirements on the job. In any event I do not think this reason can be relied upon as a ground for termination. [91] In my view termination of the contract occurred by means of the 19 July 2016 email. The real issue is whether grounds for termination of the contract existed at that time. The later characterisation of Mr Dreyer’s suspension of work as abandonment of contract is not relevant to determination of the issue. There is no utility in addressing the issue further. [92] It comes down to whether Mr Dreyer’s conduct as set out in the 18 July 2016 email was a repudiation of the contract. -- 13 of 14 -- 14 [93] Clause 22 of the contract sets out a procedure for termination of the contract for substantial breach. That process was not followed. However, clause 22.6 provides that the right of a party to terminate the contract is in addition to any other power, right or remedy that the party may have at law or in equity. [94] Accordingly, Ausmar may terminate the contract by relying on the common law.9 Repudiation of a contract occurs where a party’s conduct shows an absence of intention to perform the contract according to its terms, giving rise to a right to terminate.10 [95] I conclude that the 18 July 2016 email evinces an intention not to perform the contract except on terms imposed by Mr Dreyer as to payment of an unsubstantiated claim.11 Conclusion [96] I have concluded that no error of law is made out and that no material error of fact is made out. [97] On a preliminary assessment of the evidence which is part of a consideration as to whether leave to appeal should be granted, I conclude that Mr Dreyer does not have good prospects of succeeding in the appeal with respect to alleged errors of mixed law and fact. An appeal will not have the effect of correcting any error. I do not consider any substantial injustice has been demonstrated which could be corrected by an appeal. [98] Accordingly leave to appeal is refused. Because of my determination with respect to the alleged errors of law the appeal is dismissed. 9 Mazelow Pty Ltd v Herberton Shire Council [2003] 1 Qd R 174, [11]. 10 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 658. 11 Shevill v Builders Licensing Board [1982] HCA 47 per Gibbs CJ at [6]. -- 14 of 14 --